Glover v. State

695 S.W.3d 829

Todd Michael GLOVER, Appellant

v.The STATE of Texas, Appellee

NO. 01-22-00366-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 30, 2024

On Appeal from the 56th District Court, Galveston County, Texas, Trial Court Case No. 19-CR-2254

BRIAN W. WICE, The Lyric Centre, 440 Louisiana Suite 900, Houston, Texas 77002-1635, for Appellant.

JACK ROADY, CRIMINAL DISTRICT ATTORNEY, GALVESTON COUNTY, TEXAS, ALAN CURRY, Assistant Criminal District Attorney, 600 59th Street, Suite 1001, Galveston, Texas 77551, for State.

Panel consists of Justices Goodman, Countiss, and Farris.

OPINION

April L. Farris, Justice

A jury convicted appellant Todd Michael Glover of the first-degree felony offense of engaging in organized criminal activity and assessed his punishment at fifteen years’ confinement plus a $10,000 fine.¹ In four issues on appeal, Glover argues that: (1) the trial court erred by denying his motion to suppress evidence obtained from an illegal search of his cell phone; (2) the trial court erred by admitting extraneous offense evidence during the punishment phase; (3) the jury charge erroneously instructed the jury on the law of parole; and (4) the evidence was legally insufficient to sustain the jury’s verdict.

Concerning Glover’s first issue challenging the denial of the motion to suppress, Glover argues that the warrant affidavit supporting the cell phone search was conclusory. The State urges us to affirm, but it acknowledges that the affidavit is "very weak" and that it would be "easy enough for this Court to point out all of the deficiencies in the warrant affidavit and be done with it." We agree with Glover that the affidavit is conclusory and fails to satisfy the Fourth Amendment’s constitutional requirements. The State does not dispute that the error was harmful, so a new trial is required. Our resolution of Glover’s first issue is dispositive of this appeal.² Accordingly, we reverse and remand for a new trial.

Background

In 2019, a grand jury indicted Glover for the first-degree felony offense of engaging in organized criminal activity. See Tex Penal Code § 71.02(a)(5), (b)(3). The indictment alleged that Glover intentionally or knowingly delivered a prescription for a controlled substance for a purpose other than a valid medical purpose, and Glover acted with two other individuals—Victoria Lyn Scales and Justin Cyr—pursuant to a common scheme or continuing course of conduct. The controlled substance was dextroamphetamine, the generic version of the drug known as Adderall. The indictment also alleged that Glover possessed or obtained Adderall by misrepresentation, fraud, or deception.

Before trial, Glover moved to suppress evidence collected from his cell phone. He alleged that a single-paragraph affidavit filed in support of the search warrant failed to establish probable cause to search his cell phone. According to the search warrant affidavit, which was executed by Louisiana law enforcement, Glover was investigated for the separate alleged offense of rape based on a text message sent to a female stating, "don’t tell anybody what happened this past weekend." Louisiana police sought a warrant to search Glover’s phone "to try and confirm/deny this text message, as well as[ ] obtain any other evidence that may be helpful to this investigation." A search of Glover’s cell phone pursuant to the warrant revealed text messages that the State entered into evidence in this case to prove its allegations that Glover engaged in organized criminal activity by delivering a prescription for a controlled substance for a purpose other than a valid medical purpose. The trial court denied the motion to suppress.

Multiple witnesses testified at trial, and the trial court admitted several exhibits into evidence, including the text messages. After the close of evidence, the jury found Glover guilty of the offense of engaging in organized criminal activity. The jury assessed Glover’s punishment at fifteen years’ imprisonment and a fine of $10,000. See id. § 12.32. This appeal followed.

Motion to Suppress Evidence

In his first issue, Glover contends that the trial court erred by denying his motion to suppress evidence obtained from a search of his cell phone. Glover argues that the affidavit in support of the search warrant failed to state probable cause for the search. This issue is dispositive of this appeal.

A. Standard of Review and Governing Law

[1, 2] The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures by requiring police officers to first obtain a warrant based on probable cause before conducting a search or seizure. U.S. Const amend. IV; see also Tex Const art. I, § 9 (requiring warrant describing probable cause to search any place or seize any person or thing). Probable cause exists when, looking at the "totality of the circumstances" stated in a sworn affidavit supporting an application for a search warrant, there is a "fair probability" that evidence of a crime will be found at a particular location. State v. Baldwin, 664 S.W.3d 122, 130 (Tex. Crim. App. 2022); see also State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017). Probable cause is a "flexible, non-demanding standard." Baldwin, 664 S.W.3d at 130. Evidence obtained without probable cause in violation of the United States or Texas Constitutions is inadmissible as evidence against the accused at trial. Tex Code Crim Proc art. 38.23(a); see Utah v. Strieff, 579 U.S. 232, 237, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) (stating that exclusionary rule encompasses both primary evidence obtained as direct result of illegal search and evidence later discovered and found to be derivative of illegal search, or "fruit of the poisonous tree") (citation omitted).

[3, 4] To protect the reasonable expectation of privacy that individuals have in the contents of their cell phones, police officers generally must obtain a warrant before searching the contents of a person’s cell phone. See Riley v. California, 573 U.S. 373, 386, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014); State v. Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014). Probable cause requires "a sufficient nexus between criminal activity, the things to be seized, and the place to be searched." Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); see State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) ("The core of the Fourth Amendment’s warrant clause and its Texas equivalent is that a magistrate may not issue a search warrant without first finding ‘probable cause’ that a particular item will be found in a particular location."). Meeting this standard generally requires an affidavit that alleges specific facts showing a connection between the person’s use of the cell phone and the offense, typically that the person used the cell phone "during the crime or shortly before or afterward." State v. Baldwin, 614 S.W.3d 411, 418 (Tex. App.—Houston [14th Dist.] 2020), aff’d, 664 S.W.3d 122 (Tex. Crim. App. 2022).

[5, 6] As a reviewing court, our task is to determine whether " ‘the magistrate had a substantial basis for concluding that probable cause existed’ based on the four corners of the affidavit and reasonable inferences therefrom." Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App. 2013) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). An "affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed." Baldwin, 664 S.W.3d at 131-32 (citing Gates, 462 U.S. at 238-39, 103 S.Ct. 2317).

[7] Reviewing courts must give "great deference" to the magistrate’s probable cause determination because of the constitutional preference for police officers to conduct searches with warrants. Id at 130; State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011); see also Gates, 462 U.S. at 236, 103 S.Ct. 2317. Thus, we must not analyze the affidavit in a "hyper-technical manner," but we instead must defer to all reasonable inferences which a magistrate could have made. McLain, 337 S.W.3d at 271; Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).

[8–10] In conducting our review, we are constrained to the "four corners of the affidavit" to ensure that the magistrate had a "substantial basis" to conclude there was probable cause. Baldwin, 664 S.W.3d at 130. As with traditional searches not involving cell phones, "conclusory allegations alone are insufficient to support a finding of probable cause." Id. at 132. "[S]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Gates, 462 U.S. at 239, 103 S.Ct. 2317). "Suspicion and conjecture" do not establish probable cause. Id. at 135. Likewise, "[m]ere conclusory statements of an affiant’s belief" also fail to pass muster. Rodriguez, 232 S.W.3d at 61. While reasonable factual inferences are permitted, "a magistrate may not baselessly presume facts that the affidavit does not support." Foreman v. State, 613 S.W.3d 160, 164 (Tex. Crim. App. 2020); Elrod, 538 S.W.3d at 556.

B. Analysis

[11] Detective Ron Martin of the Coushatta Police Department in Louisiana prepared the affidavit in support of the warrant to search Glover’s cell phone. In relevant part, the Martin affidavit stated:

I was assigned this rape case for a follow up investigation. During my investigation information was obtained through interviews that were conducted. Some of the information that was obtained, was after the incident happened, suspect Todd Michael Glover made contact with victim, [K.D.,] via text message. The message is alleged to say "don’t tell anybody what happened this past weekend[.]" [K.D.’s] cellular phone is currently being searched at the Allen Parish

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